Canton, Aberdeen & Nashville Railroad Co. v. French
| Decision Date | 28 March 1898 |
| Citation | 23 So. 357,75 Miss. 939 |
| Parties | CANTON, ABERDEEN & NASHVILLE RAILROAD CO. v. MARTHA FRENCH |
| Court | Mississippi Supreme Court |
March 1898
FROM the circuit court of Monroe county HON. NEWNAN CAYCE, Special J.
The facts are stated in the opinion. For a previous report of the case see French v. Canton, Aberdeen & Nashville Railroad Co., 74 Miss. 542.
Reversed.
Bristow & Sykes and Mayes & Harris, for appellant.
It was proved that the land in controversy was in the stock law district of Monroe county, and that the railroad company owned the fee to its one hundred foot strip thereof improperly called its right of way. Laws 1882, p. 237.
The action is a technical one for a penalty on a highly penal statute, and the appellant has the right to insist upon technical defenses; but we prefer to present the case on higher grounds. If we show, as we can, that the reason of the law does not exist, or that the object of its enactment would be defeated, rather than effectuated, by the application of the statute, code 1892, § 3561, to this case, we assume that the judgment appealed from will be reversed.
The requirements of the section were made wisely to stop short of requiring cattle guards in every instance where a railroad track passes through inclosed land. The gaps and guards are required only where they are "necessary or proper." If the present is not a case where they are not "necessary or proper, " and the statute itself contemplates that there are such cases, the mind cannot conceive of one.
The object of the section, as announced by this court in Kansas City, etc., R. R. Co. v. Spencer, 72 Miss 491, is twofold: To insure safety of the traveling public and to protect the interest of cattle owners. Of necessity, the stock gaps and cattle guards must be for one of two purposes--either to keep other people's cattle from breaking in, or to keep the landowner's cattle from breaking out. Neither of these purposes can be effected in the present case, except by reason of a direct and wanton violation of law. As long as live stock is permitted to run at large, the danger of injury to them from railroad trains, or of damage and loss to the trains and traveling public, is at a minimum. But establish a stock law, and allow the landowner to build an inclosure around and over not only his own land, but to include therein the railroad's land and track, and in that inclosure confine large herds of cattle, where numerous trains are daily passing, and consider the inevitable results. How can either object of the statute be thereby effected? Railroad companies are entitled to presume that every person will comply with the law forbidding owners to allow animals to run at large. Daniels v. Grande, etc., R. R. Co., 22 Am. & Eng. R. R. Cases, 609, Van Horn v. Burlington, 7 Ib., 591.
Gilleylen & Leftwich and George C. Paine, for appellee.
It is claimed that under the local act of 1892, laws 1892, p. 237 appellee had no right to permit her live stock to run at large, and on the roadbed of appellant, and that she had no right to require appellant to maintain stock gaps or cattle guards, and the same were not necessary and not required under § 3561, code. Section 1 of the local act provides "that to save expense, and in order that farmers may cultivate and gather their crops without fences, it shall be unlawful for any stock to run at large in that portion of Monroe county south of the northern boundary line of said county, and west of Town creek and of the Tombigbee river, upon the lands of any person except the owner or lessee thereof." Section 2 provides "that any live stock found running at large or trespassing upon the fields, pastures or lands of any other person than the owner or lessee thereof, in that portion of Monroe county before designated, it shall be lawful for any person resident in said portion of said county to take up, keep, and confine such live stock, " etc. There is no conflict between this local law and § 3561, code 1892, requiring railroads to construct and maintain necessary stock gaps and cattle guards, where the track passes through the inclosed land of another. The object of the local act is to save expense to farmers residing in the territory to which the act applies, and in case of its violation, the power is conferred alone on residents to take up and confine the live stock running at large. Evidently, in the passage of the local act, railroads were not in the mind of the legislature; the same was not passed for the benefit of the roads, but for the advantage of farmers only residing in the district. It cannot reasonably be said that appellee's stock were running at large when within her inclosure, though the inclosure embraced a part of the railroad's right of way, or that appellee in any way violated the local act. We cite the court to the following cases, in further response to appellant's argument: Adams v. Kansas City, etc., R. R. Co., 74 Miss. 331; Roberds v. Mobile, etc., R. R. Co., 74 Miss. 334; Alabama, etc., R. R. Co. v. McAlpine, 71 Ala. 545. The language of the code se...
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Yazoo & M.V.R. Co. v. Harrington
...the property rights of the owners of cattle injured or killed, but to secure the safety of traveling on railroad cars." In Railroad Co. v. French, 75 Miss. 939, the court said p. 943 as follows: "But we have held that the statute requiring stock gaps and cattle guards to be erected and main......